Texas Judiciary Online - HTML Opinion

In issue=20 three, Page contends the trial court erred in considering=20 Hulse=3Ds=20 Aaffirmative=20 defense@ = that she=20 had a legal right to find a replacement tenant under the terms of = the=20 lease agreement because she filed only a general denial and failed = to=20 specifically plead this defense. In its findings of fact and = conclusions of law, the trial court offered the following = alternative=20 bases for its decision not to award Page damages for the unpaid = rent from=20 March through August 2005: (1) Page failed to mitigate his = damages=20 by using reasonable means to lease the property, namely failing to = give=20 Hulse the opportunity to find a new tenant or (2) Page in fact = mitigated=20 his damages by leasing the property to a new tenant in March = 2005. =20 The first basis constitutes an affirmative defense that a tenant = must=20 specifically plead, and we agree Hulse failed to so plead because = she=20 filed only a general denial. See Austin Hill Country = Realty, Inc.=20 v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997) = (holding=20 that tenant must plead claim that landlord failed to mitigate = damages as=20 affirmative defense). However, the second basis constitutes = a=20 rebuttal to the landlord=3Ds claim of=20 damages, which a tenant may properly raise under a general = denial. =20 See id. (holding that tenant=3Ds evidence=20 of landlord=3Ds=20 mitigation tends to rebut measure of damages under = landlord=3Ds claim of=20 breach and may be admitted under general denial). Thus, = although=20 Hulse filed only a general denial, the trial court properly = admitted=20 evidence tending to rebut Page=3Ds claim of=20 damages for unpaid rent from January to August 2005, namely the = March 17,=20 2005 letter stating Hulse observed signs that the property had = been=20 leased. Because Page does not challenge this independent = basis for=20 the trial court=3Ds award of=20 damages, we must affirm the court=3Ds=20 judgment. See Long v. Long, 196 S.W.3d 460, 468 (Tex. = App.CDallas=20 2006, no pet.) (holding that when separate and independent ground = that=20 supports judgment is not challenged on appeal, appellate court = must=20 affirm); Britton v. Tex. Dep=3Dt of=20 Criminal Justice, 95=20 S.W.3d 676, 681 (Tex. App.CHouston=20 [1st Dist.] 2002, no pet.) (same). We overrule issue=20 three.

In issue=20 four, Page contends the trial court erred in offsetting the damage = award=20 by crediting a security deposit that Page did not refund to Hulse = because=20 Hulse failed to raise her entitlement to the security deposit as = an=20 affirmative defense or counterclaim. After the close of = evidence,=20 the trial court allowed Hulse and Baumgart to testify about the = security=20 deposit, and Page failed to object to their testimony. = Moreover, he=20 failed to raise an objection regarding the security deposit in his = post-trial motion to reform the judgment. Therefore, Page = cannot=20 assert this complaint for the first time on appeal. See = Tex. R. App. P. = 33.1(a). We=20 overrule issue four.

In issue=20 five, Page complains the trial court erred in failing to award him = the=20 Acosts of=20 litigating this matter pursuant [to] law and Paragraph 29 of the = lease=20 agreement.@ =20 Paragraph 29 is entitled AAttorney=3Ds=20 Fees@ = and=20 provides that the prevailing party in a legal proceeding brought = under the=20 lease is entitled to attorney=3Ds fees and=20 various other litigation costs. Page failed to object to the = court=3Ds failure=20 to award attorney=3Ds fees and=20 costs either during trial or in his post-trial motion to reform = the=20 judgment. As such, he cannot complain about such failure for = the=20 first time on appeal. See id.; In re A.A.F., = 120=20 S.W.3d 517, 519 (Tex. App.CDallas=20 2003, no pet.) (holding appellant waived complaint that trial = court failed=20 to award attorney=3Ds fees=20 because she failed to raise issue during trial or in post-judgment = motion). We overrule issue five.